Tag: Mandatory Deportation

Obtaining Relief

Simply having a claim is not enough to obtain relief though. There are two parts to an ineffective of counsel claim. You must first prove that the lawyer’s performance was deficient. You must also establish that you were prejudiced. In this context, that means establishing that you would not have pleaded guilty if you had received accurate advice. The ability to do that depends on the facts of the case; if you were caught “red-handed”, and have no possible defense, you are going to have a difficult time establishing you would have insisted on going to trial.

I believe there will be a wave of claims involving defendants who receive some type of deferred disposition. The reason is that very few lawyers recognize that placement into such a program can subject a person to removal proceedings. Additionally, enforcement has stepped up, especially here in Georgia. I’ve seen a lot of people who were probably subject to removal proceedings, but nothing was ever done. Now, you can expect even the most minor offense will result in some type of action by ICE. Until criminal defense lawyers understand this, there are going to be people who suddenly find themselves in a holding facility, be it county jail or an immigration detention center. At that point, the options aren’t great, but at least you have some.

If you or a family member are in this situation, don’t wait. You need to contact a lawyer immediately.

The remedy is an application for writ of habeas corpus

Once a person is in immigration custody, the only option is to file an application for writ of habeas. Generally, that will be based on a claim of ineffective assistance or a claim that the plea was not voluntary. Since Padilla, the law is very clear that a lawyer has the obligation to advise a defendant about the consequences of a conviction. The question becomes how extensive that advice should be; in other words, is it enough to say you “might” be deported, or do you need to go further? Under the current administration, do you have an obligation to advise a defendant that they will be deported, or removal proceedings will be initiated?

Writ claims can be divided into two categories:

The failure to provide advice. The failure to provide any advice is rare. Most lawyers know enough to at least tell a client that they might have a problem if they are not a United States citizen. However, it might happen if the lawyer is not aware of the client’s status. There is an argument to make that a lawyer has the obligation to ask the questions and to ask the right questions.

The failure to provide accurate advice. This occurs most often where a client is subject to mandatory deportation, and the lawyer simply tells them they “might” be deported. If the result is automatic, the client needs to know that. This can also occur where the lawyer incorrectly tells the client that they don’t have anything to worry about.

If you or a loved one who is not yet a citizen is facing criminal charges, we are here to help.